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This, LLC v. Jaccard Corp.

United States District Court, D. Connecticut

February 9, 2017

THIS, LLC, Plaintiff,
JACCARD CORP., Defendant.


          Janet Bond Arterton, U.S.D.J.

         In this lawsuit alleging trademark and copyright infringement in the packaging for marshmallow roasting skewers, Defendant Jaccard Corporation ("Jaccard" or "Defendant") moves [Doc. # 121] for sanctions and for expedited consideration on the grounds that Plaintiff This, LLC ("TLLC" or "Plaintiff) failed to timely supplement its interrogatory responses as it stipulated and in violation of the Court's order adopting the Parties' stipulation. Plaintiff opposes [Doc. # 123], arguing that its failure to comply was unintentional, that it has since complied, and that the Court-ordered expedited briefing schedule [Doc. # 122] violated its due process rights. For the reasons set forth below, the Court grants Defendant's motion and imposes sanctions in the form of (i) a mandatory but rebuttable inference that any infringement by Defendant of the TLLC IP asserted in this case was neither willful nor knowing, and (ii) Defendant's costs and reasonable attorneys' fees for its motion and reply.

         I. Background

         Because the Court's consideration of Defendant's motion and Plaintiffs opposition takes place in the overall context of discovery in this case, a review of the parties' discovery disputes is necessary.

         On August 16, 2016, the Court held a conference in anticipation of an evidentiary hearing on motions to dismiss and for preliminary injunction. That same day, the parties resolved the motion to dismiss [Doc. #51] and agreed to a proposed preliminary injunction order [Doc. ## 52, 54, 55].

         On August 30, 2016, the Court held a status conference to discuss scheduling in light of the preliminary injunction and the limited time between discovery closure and the trial-ready date. At that conference, the Court alerted the parties to the need for an expedited discovery schedule in light of the preliminary injunction's burden on Defendant.

         On October 17, 2016, the day on which Plaintiff was scheduled to serve its damages analysis, it moved for an eight-week extension of all deadlines and modification to the schedule to instead require its damages analysis at the end of discovery. During the pendency of its motion, the Plaintiff took no action with respect to any of the deadlines in the operative scheduling order. The Court subsequently denied Plaintiffs motion, observing the Plaintiffs failure to timely propound discovery as necessitating the discovery extension it sought and the consequences of the preliminary injunction continuing in force. (See Ruling on Motion for Modification of Scheduling Order [Doc. #105] at 5.)

         On October 27, 2016, Defendant sought the Court's assistance in the resolution of several discovery disputes [Doc. # 88], including Defendant's allegation that Plaintiffs Objections and Responses to Defendant's Interrogatories failed to conform to the requirements of Fed.R.Civ.P. 33(d). In particular, Plaintiffs Objections and Responses to Interrogatories 1, 3, 4, 5, 6, 7, 12, 13, 14 and 15 interposed a set of boilerplate objections, indicated Plaintiffs willingness to meet and confer, and then stated in response to each interrogatory: "[s]ubject to the foregoing objections and pursuant to Rule 33(c) [sic] of the Federal Rules of Civil Procedure, TLLC respectfully refers Defendant to the documents already produced in this action. TLLC will supplement its response as discovery continues in this action and as further information becomes available."[1] (Ex. A to Muldoon Decl. [Doc. # 121-3] passim.)[2] The Court scheduled a status conference for December 14, 2016 to review this and other disputes.

         Prior to the status conference, the parties reached a stipulated agreement providing that the Plaintiff would be permitted to supplement its interrogatory responses to conform with Fed.R.Civ.P. 33(d). At the conference, the Parties read their stipulation into the record and Defendant requested that the Court so-order the stipulation "so if there's a problem, we have remedies under rule 37." (Dec. 14 Tr., Ex. B to Def.'s Reply [Doc. # 121-2] at 8.) The stipulation read in pertinent part:

4. TLLC agrees that within ten (10) days of [December 14, 2014] it shall serve on Jaccard supplemental interrogatory responses in accordance with Rule 33(d) that identify by Bates number the documents from which the answers to the aforementioned interrogatories can be ascertained.
5. TLLC agrees that within ten (10) days of [December 14, 2014] it shall serve on Jaccard supplemental document demand responses that identify by Bates number any documents responsive to each of the document demands.

         After the conference, the parties promptly filed a written copy of the stipulation they read into the record and the Court adopted and so-ordered the stipulation. However, despite the parties' agreement and the Court's order, Plaintiff served no supplement to its interrogatory responses by December 27, 2016 as ordered, only supplemental responses to the document production demands. (Ex. B to Mot. for Sanctions [Doc. # 121-4]; PL's Mem. Opp'n at 3.) On January 3, 2016, Defendant emailed Plaintiff asking why Defendant should not move for sanctions against Plaintiff for violation of the Court's order. (Id.) Receiving no response, counsel for Defendant renewed the inquiry via email on January 6, 2017. (Ex. C to Mot. for Sanctions [Doc. # 121-5].) Again receiving no response, on January 13, 2017 Defendant requested that Plaintiff be prepared to discuss why it should not move for sanctions at the meet-and-confer scheduled for Monday, January 16, 2017 prior to the scheduled deposition of Eric Wangler. (Ex. D to Mot. for Sanctions [Doc. # 121-6].)

         On the Friday before the deposition, Plaintiff canceled the deposition. On Monday-the day on which discovery was to close-Plaintiff did not appear for the meet-and-confer and, Defendant represents, did not answer three telephone calls or respond to two voicemails left by Defendant. (Ex. G to Mot. for Sanctions [Doc. # 121-9].) After Counsel for Defendant sent a further email to Plaintiff on Tuesday, January 17, 2017 querying his failure to respond to the phone calls, Plaintiffs Counsel emailed, "I home [sic] sick with the flu and thus not available to meet and confer today. I will contact you when I return to work and we can set a time then." (Ex. H to Mot. for Sanctions [Doc. # 121-10].) On January 18, 2017, Defendant filed the instant motion for sanctions for Plaintiffs violation of the schedule to which Plaintiff had agreed and the Court subsequently so-ordered. [Doc. # 121] On Friday, January 20, 2017, four days after the close of discovery, Plaintiff supplemented its interrogatory responses.

         II. Discussion

         "A district court has wide discretion to impose sanctions, including severe sanctions, . . . and its ruling will be reversed only if it constitutes an abuse of discretion." Design Strategy, Inc. v. Davis,469 F.3d 284, 294 (2d Cir. 2006). Fed.R.Civ.P. 37(b)(2)(A) lists the potential sanctions which may be imposed on a party who fails to obey an order to provide or permit discovery. The list of permissible sanctions includes "directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action . . . ." as well as dismissing the action, prohibiting the sanctioned party from introducing evidence in support of designated claims, striking pleadings, and other possible punishments. Fed.R.Civ.P. 37(b) (2)(A)(i). Likewise, under Rule 16, a ...

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